Brzozowski v. Brzozowski , 2014 Ohio 4820 ( 2014 )

[Cite as Brzozowski v. Brzozowski, 2014-Ohio-4820.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 101013
ROBERTA BRZOZOWSKI
PLAINTIFF-APPELLEE
vs.
JOSEPH BRZOZOWSKI
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Domestic Relations Division
Case No. DR-01-283310
BEFORE: S. Gallagher, J., Jones, P.J., and McCormack, J.
RELEASED AND JOURNALIZED: October 30, 2014
ATTORNEY FOR APPELLANT
John T. Price
9597 Huntington Park Drive
Strongsville, Ohio 44136
ATTORNEY FOR APPELLEE
Adam J. Thurman
Schoonover, Rosenthal, Thurman & Daray, L.L.C.
1001 Lakeside Avenue
Suite 1720
Cleveland, Ohio 44114
SEAN C. GALLAGHER, J.:
{¶1} Defendant-appellant Joseph Brzozowski appeals the judgment of the trial court that
adopted the magistrate’s decision and overruled his objections to that decision, denied his motion
to terminate or modify spousal support and ordered the continued payment of spousal support in
the amount of $1,200 per month, granted the motion to show cause and motion for attorney fees
of plaintiff-appellee Roberta Brzozowski, and found Joseph in civil contempt and ordered the
payment of an arrearage in spousal support. For the reasons stated herein, we affirm the
decision of the trial court.
{¶2} After over 30 years of marriage, in February 2003, Joseph and Roberta were granted
a judgment of legal separation, which incorporated the terms of their written separation
agreement. The parties were subsequently divorced in January 2007. The judgment entry of
divorce incorporated the terms of the aforementioned separation agreement. Pursuant to the
separation agreement, Joseph was to pay Roberta $1,200 per month in spousal support, which
was to continue unless modified, until “the death of [Joseph], the death of [Roberta], her
remarriage or her entry into a relationship similar to marriage.”
{¶3} In December 2011, Joseph filed a motion to terminate or modify spousal support,
alleging that he had a significant change in his circumstances and that Roberta had assumed a
relationship similar to marriage. Thereafter, Roberta filed a motion to show cause, asserting that
Joseph had not paid spousal support as ordered since May 2011 and that a substantial arrearage
had accrued. She also filed a motion for attorney fees. The matter eventually proceeded to a
hearing before a court magistrate.
{¶4} On July 26, 2013, the magistrate’s decision was issued. Upon a thorough review of
the evidence presented, the magistrate’s decision was to deny Joseph’s motion to terminate or
modify spousal support and order the continued payment of spousal support in the amount of
$1,200 per month, to grant Roberta’s motion to show cause, to find Joseph in civil contempt and
an arrearage owing in the amount of $31,506.55, and to grant Roberta’s motion for attorney fees
in the amount of $9,798.94.
{¶5} Joseph filed objections to the magistrate’s decision, as well as supplemental
objections along with a transcript. On January 30, 2014, the trial court adopted the magistrate’s
decision in its entirety, overruled Joseph’s objections, and entered its judgment. On February
11, 2014, Joseph filed an untimely request for findings of fact and conclusions of law. Joseph
filed a notice of appeal on February 18, 2014.
{¶6} Joseph raises seven assignments of error for our review. Under his first assignment
of error, Joseph argues that the trial court failed to conduct an independent review and merely
“rubber stamped” the magistrate’s decision.
{¶7} Civ.R. 53(D)(4)(d) requires that a trial court, in ruling on timely filed objections to a
magistrate’s decision, “undertake an independent review as to the objected matters to ascertain
that the magistrate has properly determined the factual issues and appropriately applied the law.”
A trial court may not merely “rubber stamp” a magistrate’s decision. Knauer v. Keener, 143
Ohio App.3d 789, 793, 758 N.E.2d 1234 (2d Dist.2001). A reviewing court will presume that
the trial court conducted an independent review of the magistrate’s decision unless the appellant
affirmatively shows that the trial court failed to conduct an independent analysis. Rokakis v. W.
Res. Leasing Co., 8th Dist. Cuyahoga No. 95058, 2011-Ohio-1926, ¶ 18, citing McCarty v.
Hayner, 4th Dist. Jackson No. 08CA8, 2009-Ohio-4540, ¶ 18. Further, the mere fact that the
trial court adopted the magistrate’s decision does not show that the court did not exercise its
independent judgment. Id.{¶8} In the judgment entry, the trial court specifically overruled the objections and
supplemental objections to the magistrate’s decision and adopted the magistrate’s decision in its
entirety. The magistrate’s decision set forth extensive findings of fact and conclusions of law.
Although it would be a better practice for the trial court to more fully discuss and review a
party’s objections and set forth its reasons for adopting the magistrate’s decision, a trial court’s
failure to do so does not necessarily result in the conclusion that the court merely “rubber
stamped” the magistrate’s decision. See Pietrantano v. Pietrantano, 12th Dist. Warren No.
CA2013-01-002, 2013-Ohio-4330, ¶ 23. Joseph has failed to point to any circumstances present
in the record to show that the trial court failed to independently review the magistrate’s decision.
Therefore, we overrule the first assignment of error.
{¶9} Under his second assignment of error, Joseph claims that despite his request, the
trial court failed to issue findings of fact and conclusions of law pursuant to Civ.R. 52. A
review of the record reflects that Joseph did not make a timely request within seven days of the
entry of judgment as required under Civ.R. 52. Additionally, Civ.R. 52 instructs that “[a]n
opinion or memorandum of decision filed in the action prior to judgment entry and containing
findings of fact and conclusions of law stated shall be sufficient to satisfy the requirements of
this rule.” In this case, the magistrate’s decision, which was adopted by the court, provided
detailed findings of fact and conclusions of law. These findings, together with other parts of the
record, provide an adequate basis upon which this court can decide this appeal. The second
assignment of error is overruled.
{¶10} Under his third assignment of error, Joseph claims the trial court erred by
“essentially treating [his] retirement fund as a means from which to pay ongoing spousal
support.” We find no merit to this argument.
{¶11} The record reflects that Joseph’s 401(k) retirement fund was allocated to him as
part of the property division in the divorce. After 37 years of employment at American
Greetings, Joseph chose to voluntarily retire in May 2011. However, as the trial court
determined, through its adoption of the magistrate’s decision, “[s]ufficient evidence was
presented to support a finding that [Joseph’s] choice to retire from American Greetings was done
with the intent of defeating his spousal support obligation.” Indeed, the record shows that
despite his spousal support obligation, Joseph retired one year before becoming eligible for
Social Security benefits and, upon his retirement, he ceased paying spousal support.
{¶12} The trial court considered relevant factors under R.C. 3105.18(C)(1) to determine
whether Joseph’s spousal support obligations should be modified based on a voluntary decrease
in income. The court considered the income of the parties from all sources; the ages and the
physical, mental, and emotional conditions of the parties; the retirement benefits of the parties;
the duration of the marriage; and the relative assets and liabilities of the parties. The court was
permitted to consider “any other factor that the court expressly finds to be relevant and
equitable.” R.C. 3105.18(C)(1)(n).
{¶13} When considering the income of the parties, the trial court recognized that
Roberta’s income was limited to a Social Security disability benefit and that she had no other
possibility of income because of her status as permanently disabled. The court reviewed
Joseph’s earnings prior to his voluntary retirement in 2011, recognized that he received a portion
of his retirement benefits in 2010 and that he began receiving Social Security benefits in April
2012, and considered that he was presently employed part-time. The court also considered his
partner’s income. It further recognized that Joseph was not claiming a share of rent on property
he inherited with his sister and he was not charging his sister rent while she was living with him.
{¶14} In reviewing the retirement benefits of the parties, the court recognized that
Roberta did not have any retirement benefits and that Joseph was allocated his American
Greetings 401(k) retirement fund in the divorce, which was valued at approximately $240,000
upon Joseph’s retirement in May 2011.
{¶15} When considering the assets and liabilities of the parties, the court found it
incredulous that Joseph chose to make a down payment of approximately $180,000 on the
purchase of a $230,000 home by effectively liquidating his retirement account, while under a
court order to pay monthly spousal support of $1,200. It is important to note that income
derived from retirement benefits and distributions are properly included as income for spousal
support purposes. Johns v. Johns, 9th Dist. Summit No. 24704, 2009-Ohio-5798, ¶ 18; Meinke
v. Meinke, 6th Dist. Lucas No. L-95-282, 1996 Ohio App. LEXIS 5911 (Dec. 30, 1996). The
court recognized that Joseph and his partner also purchased a $45,000 Jeep Grand Cherokee with
a $20,000 down payment. Additionally, Joseph had allowed his sister to live rent free in his
home and gave her $12,000 with no expectation that he would be repaid. These were
permissible factors for the court’s consideration in determining whether to modify the spousal
support obligation. See R.C. 3105.18(C)(1)(n).
{¶16} Our review reflects that the trial court did not err in its consideration of the
retirement fund and that the court did not abuse its discretion in finding it was reasonable and
appropriate for Joseph to continue to pay spousal support to Roberta in the amount of $1,200 per
month. The third assignment of error is overruled.
{¶17} Under his fourth assignment of error, Joseph claims the trial court erred by finding
him guilty of contempt for financial misconduct. He claims that there can be no financial
sanction for the purported misuse of an asset that was allocated to the spouse in a property
division and the trial court misapplied R.C. 3105.171(E)(4), which is not applicable to the matter.
This argument is misplaced.
{¶18} The magistrate’s decision, which was adopted by the court, did not even reference
R.C. 3105.171, relating to a property division or a distributive award in divorce proceedings, and
only used the term “financial misconduct” in the context of analyzing whether Joseph should be
found in contempt for his nonpayment of his monthly spousal support obligation. The court
referenced Joseph’s voluntary retirement, depletion of his retirement account, and frivolous
spending decisions because these actions demonstrated a self-created financial situation that was
used to avoid paying spousal support. These findings supported the court’s determination that
there had been a “blatant disregard and non payment of the Court ordered spousal support.”
Further, the trial court recognized that Joseph’s financial decisions and expenditures supported a
finding that he “had the financial ability to pay the $1,200.00 monthly spousal support order[.]”
The fourth assignment of error is overruled.
{¶19} Under his fifth assignment of error, Joseph clams the trial court erred by finding he
was voluntarily underemployed in order to evade his support obligation. He asserts that even
the magistrate concluded he was entitled to retire after 37 years of work, yet the court chose to
impute an intent to avoid paying spousal support.
{¶20} A trial court has broad discretion in modifying spousal support awards, and “the
finding as to whether there has been a change in circumstances which, ultimately, warrants a
modification or termination, will not be reversed absent an abuse of discretion.” Mottice v.
Mottice, 118 Ohio App.3d 731, 735, 693 N.E.2d 1179 (9th Dist.1997). The burden of
establishing the need for a modification of spousal support rests with the party seeking the
modification. Tremaine v. Tremaine, 111 Ohio App.3d 703, 706, 676 N.E.2d 1249 (2d
Dist.1996).
{¶21} The magistrate’s decision, which was adopted by the trial court, concluded that
Joseph’s voluntary retirement was a substantial change in his circumstances. However, the court
found that Joseph decided to retire despite his ongoing spousal support obligation and a year
prior to being eligible for Social Security benefits. The court further recognized that there was
no evidence to support Joseph’s claim that he anticipated being forced out and, although he
claimed to suffer from “cluster” headaches, he did not have health insurance and was not being
treated by a physician. Additionally, Joseph called Roberta two months prior to his retirement to
inform her that the spousal support payments were going to end on May 15, 2011, the date of his
retirement, and he in fact ceased making his spousal support payments. These facts
demonstrated that his retirement, at least in part, was done to avoid further payment of spousal
support. This determination was within the trial court’s discretion.
{¶22} Where a retirement is made with the intent of defeating a spousal support
obligation, the retirement is considered “voluntary underemployment,” and the party’s
pre-retirement income may be attributed to him. Chepp v. Chepp, 2d Dist. Clark No. 2008 CA
98, 2009-Ohio-6388, ¶ 10. Further, “whether modification [of spousal support] is warranted
depends on all the facts and circumstances relevant to the nature and amount of support per R.C.
3105.18(C).” Tremaine at 707. The fifth assignment of error is overruled.
{¶23} Under his sixth assignment of error, Joseph claims the trial court erred in finding
Roberta was not cohabitating in violation of the terms of the divorce decree. Joseph sought the
termination of spousal support upon his claim that Roberta was living in a relationship
substantially similar to marriage with James Barker.
{¶24} The determination of whether “cohabitation” exists is a factual question to be
initially determined by the trial court. Moell v. Moell, 98 Ohio App.3d 748, 752, 649 N.E.2d
880 (6th Dist.1994). In order for a trial court to make a finding of cohabitation the following
three elements must be met: (1) actual living together; (2) for a sustained duration; (3) with
shared expenses with respect to financing and day-to-day incidental expenses. Id.{¶25} In adopting the magistrate’s decision, the trial court found that there was credible
evidence demonstrating that Mr. Barker does not help Roberta financially and the two do not
share expenses, that Roberta maintains her own residence in Parma, that the two had not had an
intimate relationship in over five years, that Roberta spent time at Mr. Barker’s home with
varying frequency to assist each other with medical health issues, that the two had only taken two
trips together, that the two have no plans for marriage and hold themselves out as good friends,
and that Joseph and Roberta’s daughter’s testimony demonstrated a bias toward Roberta.
{¶26} We cannot say the trial court abused its discretion in finding, upon a consideration
of the totality of evidence presented, that Joseph failed to demonstrate Roberta had entered a
relationship similar to marriage with Mr. Barker. The sixth assignment of error is overruled.
{¶27} Under his seventh assignment of error, Joseph claims the trial court abused its
discretion by finding him in contempt without making any factual findings. We find no merit to
this argument.
{¶28} A party may be found in civil contempt for the failure to pay court-ordered spousal
support pursuant to R.C. 3105.18(G). A trial court’s decision on contempt is reviewed under an
abuse of discretion standard. Levy v. Levy, 8th Dist. Cuyahoga No. 100609, 2014-Ohio-2650, ¶
38.
{¶29} In this case, the trial court adopted the magistrate’s decision in its entirety. The
decision provided detailed findings of fact regarding the contempt issue. The court found that
“[e]ven if [Joseph] believed in good faith that [Roberta] was residing with Mr. Barker in a
relationship similar to marriage, [Joseph] was legally obligated to continue to make spousal
support payments until further order of the court.” The court further found that the evidence,
including Joseph’s financial expenditures, demonstrated his ability to pay the spousal support.
We are unable to find the trial court abused its discretion in finding Joseph in contempt for
nonpayment of spousal support. The seventh assignment of error is overruled.
{¶30} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas
court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
SEAN C. GALLAGHER, JUDGE
LARRY A. JONES, SR., P.J., and
TIM McCORMACK, J., CONCUR
.